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AGENTS OF

A REPORT ON

THE INCIDENCE OF SUBPOENAS

SERVED ON THE NEWS MEDIA IN 2001

The Reporters Committee for Freedom of AGENTS OF

A REPORT ON THE INCIDENCE OF SUBPOENAS SERVED ON THE NEWS MEDIA IN 2001

A project of The Reporters Committee for Freedom of the Press

Project Editor and Editor in Chief Lucy A. Dalglish

Editor Gregg P. Leslie

Compiled and reported by Wendy Tannenbaum

Funding for “Agents of Discovery” provided by the John S. and James L. Knight Foundation. The Knight Foundation promotes excellence in worldwide and invests in the vitality of 26 U.S. communities.

© 2003 The Reporters Committee for Freedom of the Press. All rights reserved. No part of this booklet may be reproduced in any form or by any means without the prior, written permission of the publisher. Additional copies of this report may be obtained from: The Reporters Committee for Freedom of the Press 1815N. Fort Myer Drive, Suite 900 Arlington, 22209 (703) 807-2100 e-mail: [email protected] Foreword

We at the Reporters Committee for Freedom of democratic society, or any public interest in ensuring the Press knew if we waited long enough for a horror that the media remain impartial and disinterested story to make the case for a strong reporter’s privi- both in perception and reality. On the other hand, lege, we’d get a doozy. Just in time for the final survey respondents report that they were successful installment of Agents of Discovery, a federal judge in more than 75 percent of the time in 2001 when they Texas threw a young freelance book author in jail for sought to get a subpoena quashed. Newsrooms a record-breaking 168 days. Vanessa Leggett refused managers who were successful in getting the subpoe- to identify confidential sources for a book she is nas quashed strongly recommend taking legal action writing about a notorious murder and paid whenever a subpoena is served. the price by serving time in 2001 in a federal prison There has been some progress. Survey responses for contempt of court. Details of her remarkable case show, for example, the average number of subpoenas are featured in this report. received by all respondents was 2.6 in 2001. This The Reporters Committee for Freedom of the represents a decline from the 1991 survey, which Press launched its first survey documenting the found that respondents received an average of 3.0 incidence of subpoenas served on the news media in supoenas. The average number of subpoenas per 1990. We collected data from print and broadcast respondent in 1997 was 4.6. news operations throughout the United States, hoping Broadcasters continued to receive more subpoenas to demonstrate that journalists are, indeed, “different- than in 2001. The average number of ly situated” from other targets of discovery, and that subpoenas served on television news stations was 7.7. the negative impact of subpoenas on newsgathering The average number served on newspapers was 0.7. and dissemination was substantial. The 2003 report Lawyers for television journalists say that many (compiling data from subpoenas in 2001) is our sixth. litigators incorrectly believe that videotaped evidence, We produced our first five reports in 1991, 1993, or evidence presented by a famous local television 1995, 1999 and 2001. These Agents of Discovery reporter, is more persuasive to a jury than more reports frequently were introduced into evidence or “ordinary” evidence. appended to legal briefs and motions seeking to quash We hope that this reports will help to educate and subpoenas. They persuaded legislators in several states inform judges of the very real consequences and costs to enact or enhance journalists’ shield laws. And they of permitting subpoenas to be served indiscriminately outlined practical solutions for newsroom executives on the news media. overwhelmed by expensive, time-consuming subpoe- The Reporters Committee is grateful to the John nas based on the experiences of their colleagues. S. and James L. Knight Foundation for underwriting Despite efforts to or improve shield laws in this national survey in 1997, 1999 and 2001. several states in the late 1990s, ’s privilege This report was produced through the hard work is still on shaky ground in many states. Several of several members of the Reporters Committee staff. disturbing trends have surfaced. For example, media We acknowledge especially Wendy Tannenbaum, outlets are broadcasting and printing footage, outtakes 2002-2003 legal fellow, who drafted the report and and notes (usually on the Internet) so that when the compiled most of the data. Legal Defense Director material is subpoenaed they can claim they are Gregg Leslie supervised the data collection and handing over material that has already been pub- reporting and produced the report. Victor Gaberman, lished. In some states, courts have issued “separation Maria Gowen and Lois Lloyd, with special help from orders,” which prevent journalists who have covered the entire Reporters Committee staff, provided court stories from covering the actual trial because administrative support. they may be called as witnesses. And, perhaps most We also express our appreciation to the journalists disturbing of all, some television newsrooms are and lawyers whose assistance made Agents of Discovery discarding outtakes within 24 hours so there is possible. nothing available when the process server shows up at the reception desk. Lucy A. Dalglish, Esq. Many judges believe a subpoena served on a news Executive Director organization is no different from that served on any The Reporters Committee other business. In opinion after opinion, judges fail to for Freedom of the Press acknowledge any special role for the media in a May 2003

AGENTS OF DISCOVERY 1 AGENTS OF

A report on the incidence of subpoenas served on the news media in 2001

In 2001, freelance book the disadvantage of a jour- author Vanessa Leggett nalist appearing to be an broke a record she never investigative arm of the aspired to challenge. Serv- judicial system or a re- ing what would turn out search tool of government to be a 168-day prison or of a private party; the term, she became the disincentive to compile and longest-jailed journalist in preserve nonbroadcast ma- U.S. history held for re- terial; and the burden on fusing to disclose a confi- journalists’ time and re- dential source. sources in responding to Leggett chose to go to subpoenas.”1 prison rather than com- When rejected Leg- ply with a subpoena from gett’s appeal in August a federal grand jury. She 2001, the appellate court had claimed that a report- issued an opinion that er’s privilege protected made no mention of the her from having to dis- burden subpoenas impose close her confidential on news organizations.2 sources for a book she was AP PHOTO Other courts have been writing about a murder At 168 days, Vanessa Leggett’s time in jail is the most served by similarly unwilling to ac- case in Texas. After a U.S. any journalist for refusing to disclose confidential information. knowledge the enormity of District Court judge and an appeals court Yet the practice of subpoenaing jour- harm that results from media subpoe- ordered her to disclose her interviews or nalists creates problems besides the threat nas. In 1998, a panel of the U.S. Court of go to jail, Leggett stood her ground and of jail. Compliance with subpoenas en- Appeals in (2nd Cir.) turned herself in to prison officials. dangers the freedom of the press. Each rejected assertions that subpoenaing the “I just feel like I’m doing what I have time the press is forced to provide evi- media has deleterious effects on the news- to do to protect my First Amendment dence to prosecutors, police, criminal gathering process because those asser- right to freedom of the press,” Leggett defendants or civil litigants, the media’s tions were supported by “no persuasive told an Associated Press reporter on her neutral status is compromised, and the argument, much less any appealing evi- way to jail. “I feel like what they are free flow of information to the public is dence.”3 The U.S. Supreme Court’s 1972 doing is wrong.” chilled. landmark opinion in the case Branzburg After her release almost six months Moreover, as many managing editors v. Hayes noted that “[e]stimates of the later, Leggett said she would be more and news archivists will attest, subpoe- inhibiting effect of such subpoenas . . . than willing to go back to jail if she were nas to news organizations are burden- are widely divergent and to a great ex- subpoenaed again. some and time consuming, often eating tent speculative.”4 “If that’s what it takes, that’s what it up valuable resources that should be The Reporters Committee for Free- takes. This is not so much about me. It’s used to gather and disseminate news. dom of the Press, with the assistance of about the public’s right to a free and In a friend-of-the-court brief sub- news outlets around the country, has independent press.” mitted to the U.S. Court of Appeals in taken on the task of documenting the Subpoenas to journalists by govern- (5th Cir.) in Leggett’s case, burden these subpoenas to satisfy the ment and other litigants rarely result in The Reporters Committee for Freedom demand for empirical evidence from jail time. Vanessa Leggett’s ordeal made of the Press and other media organiza- judges faced with subpoena challenges. national news for being the first time in tions argued that news organizations Taken together with the previous 30 years that a journalist had spend any should be free from “the threat of ad- editions of Agents of Discovery — which significant amount of time behind bars ministrative and judicial intrusion into surveyed the news media on the same for refusing to comply with a subpoena. the newsgathering and editorial process; topic in two three-part studies, one cov-

AGENTS OF DISCOVERY 3 ering the years 1989, 1991, and 1993, and the second covering Comparative results from six editions of 1997, 1999 and now 2001 — this is the only current, major study of the incidence of subpoenas issued against news Agents of Discovery organizations. The last similar national study of this type was published in 1971 by former University of Michigan law Average number of subpoenas received by organizations professor Vincent Blasi.5 reporting at least one subpoena: The 319 journalists and media attorneys who provided data for this report represent print and television news outlets 1989 9.1 from all over the country. All together, they received 823 subpoenas in 2001. The managing editors and news directors who replied to the survey almost unanimously agreed that 1991 7.4 responding to subpoenas from investigators and litigants is a burdensome, and often aggravating, task. Each subpoena 1993 7.5 drains time and money from a news organization’s budget — resources that should be spent on newsgathering. Some sub- 1997 8.4 poenas require expenditures for legal fees, which can mount if an attorney needs to go to court to protect a news organi- 1999 6.6 zation’s press freedoms. Even the simplest subpoena requires the time and attention from a staff person who can discuss the 2001 5.8 matter with the subpoenaing attorney or locate and dub a videotape. Some news outlets, in an effort to limit the flow of subpoe- Percentage of organizations receiving at least one subpoena: nas, have developed policies and strategies for avoiding un- necessary requests. Several surveyed newsrooms reported the Broadcasters Newspapers institution of policies to destroy raw footage or reporters’ notes, remove reporters from coverage of an event, notify 75% 1989 confidential sources that confidentiality might be compro- 33% mised in the face of a subpoena, or prohibit the use of confidential sources altogether. The fact that newsrooms are 68% 1991 forced, by the threat of overburdensome subpoenas, to mod- 34% ify their newsgathering processes in this manner represents an intrusion on their First Amendment right to gather and 81% 1993 disseminate the news. Editorial freedom is lost when news- 41% gatherers destroy or avoid valuable reporting for fear of compelled disclosure. 79% 1997 The subpoenas issued against journalists vary in scope and 43% originate from a variety of sources. A subpoena might request anything from a published article or previously broadcast 77% 1999 story to the disclosure of a confidential source. The majority 35% of subpoenas are issued by criminal prosecutors and defense counsel, but many subpoenas also are issued by private liti- 79% 2001 gants in civil lawsuits. 32% News organizations that want to fight subpoenas often file motions asking courts to “quash” them. A state’s case law, the First Amendment, a state constitution, or a state shield law Percentage of challenged subpoenas that were quashed: might provide the grounds for such challenges. The news media often invoke these sources for a “privilege” that will 1989 77% defeat any legal obligation to comply with subpoenas. Jour- nalists and attorneys interested in learning the contours of 1991 72% their own state’s privilege should take advantage of the Re- porters Committee’s new Reporter’s Privilege Compendium, available online at www.rcfp.org/privilege. The compendium 1993 81% provides comprehensive guides, compiled by media lawyers in each state and every federal jurisdiction, to responding to 1997 75% and fighting against newsroom subpoenas. Journalists object to subpoenas because they want to main- 1999 78% tain their independence from government or from a particu- lar side in a dispute. They worry that willing compliance with 2001 75% subpoenas will turn them into “investigative arms” of prose- cutors, police, criminal defendants and civil litigants. This study documents the events that fuel such fears and the burden subpoenas place on the news media.

4 REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS Methodology

The methodology for this survey was consistent with the process used in compiling prior Agents of Discovery reports. A total of 2,300 surveys were mailed to print and broadcast Types of proceedings outlets in every state and the District of Columbia. Each daily listed in the 2001 edition of the Editor and Publisher Yearbook was sent a survey, regardless of circulation or geo- Administrative Other (11) proceedings (10) graphic location. Each licensed television news outlet affiliat- ed with a broadcast network was sent a survey. Civil depositions Don’t know (13) The surveys were first mailed to news outlets in January (73) 2002. The survey form, like that of 1999, contained 20 questions and included space for respondents’ comments. See Civil trials Criminal trials a reproduction of the survey form, Appendix A. A cover letter (353) explained the purpose of the study and a pre-addressed, (222) stamped envelope for return of the questionnaire was en- closed. A reminder postcard was sent in April, and in June another letter was sent with a copy of the survey to those who had not yet responded. The Reporters Committee would like to thank Vanessa Leggett, who signed the cover letter of the Criminal investigations (115) second mailing urging publishers and broadcasters to answer Grand jury proceedings (16) the survey so that the full extent of the subpoena problem could be documented. Respondents were asked to provide the number, types and disposition of subpoenas received. They were also asked whether police or other law enforcement officers searched Subpoenaing party in their newsrooms, or if the news organization’s telephone records or those of any member of its staff had been subpoe- criminal proceedings naed during the year. An optional question asked news orga- nizations whether the issuance of subpoenas had affected Law enforcement officers (22) newsroom policies regarding the retention of unpublished Don’t know (33) materials or the use of confidential sources. By the cut-off date, 319 news outlets had responded to the subpoena survey — a 14 percent response rate. See list of Prosecutors (206) participating news organizations, Appendix B. In 1999 the re- Defense lawyers (223) sponse rate was 19 percent; in 1997, it had been 29 percent. Of the returned 2001 surveys, 237 (74 percent) came from newspapers and 82 (26 percent) came from broadcasters. The response rate for newspapers was 16 percent, a drop from 22 percent in 1999 and 28 percent in 1997. The response rate for broadcasters was 10 percent, a drop from 13 percent in 1999 and 31 percent in 1997. The survey also gave each respondent the option of asking that its identity be kept confidential. Of the 319 news outlets Subpoenaing party in that returned survey responses, 117 — or 37 percent — civil proceedings requested anonymity. In this report, organizations that re- quested anonymity are identified only by state and medium. The figures and percentages contained in this report have not been statistically analyzed, and no statistical generaliza- Plaintiffs (91) tions have been made outside the group of respondents. This Don’t know report includes only the data supplied by the responding news (125) organizations. Calculations were rounded to the nearest tenth Defendants (79) of a percentage point. The sum of the percentages in some questions may not equal 100 percent, both because of the rounding and because in some instances, respondents could select more than one description or answer for one subpoena.

Survey Population and Returns

Three hundred nineteen news organizations (237 newspa- pers and 82 television broadcasters) responded to this survey. The total number of subpoenas reported was 823. One

AGENTS OF DISCOVERY 5 hundred forty-two respondents — or 45 77 (32 percent) received one or more ceived an average of 3.0 subpoenas. The percent — reported receiving at least subpoenas during 2001. Of the 82 average number of subpoenas per re- one subpoena. In 1999, 46 percent of broadcasters responding, 65 (79 per- spondent in 1997 was 4.6. the respondents reported receiving at cent) received one or more subpoenas Broadcasters received more subpoe- least one subpoena. during the year. nas than newspapers in 2001. The aver- The 82 television stations received The average number of subpoenas age number of subpoenas received by 638 subpoenas; the 237 newspapers re- received by all respondents was 2.6. This television news stations was 7.7. The ceived 185 subpoenas. represents a decline from the 1999 sur- average number received by newspapers Of the 237 newspapers responding, vey, which found that respondents re- was 0.7.

Subpoenas from the federal government

The year 2001 involved more tur- that could identify a reporter’s source or to obtain information from alterna- moil and dramatic change than any source material. And in eight of the cases tive sources.” other year in recent history. The — five involving subpoenas for report- The regulations also require that events of September ers’ phone records and prosecutors negotiate with the me- 11 shocked the na- three involving requests dia. No subpoena may issue without tion and spurred the for documents or testi- authorization from the Attorney Gen- federal government mony — the department eral, unless the material sought has to take action to pun- said it did not negotiate already been published, and the news ish terrorists, protect with reporters before is- organization has consented to disclo- the country and com- suing the subpoena be- sure. pensate for losses. cause negotiations would In addition, Justice attorneys can The attacks prompt- have threatened a crimi- only subpoena information that is ed federal investiga- nal investigation. “essential” to a case. “The subpoena tions and litigation The department list- should not be used to obtain periph- that will remain ac- ed 33 instances of trial eral, nonessential, or speculative in- tive for years to subpoenas served on formation,” under the rules. come. broadcast and print re- The guidelines in place at Justice Yet, surprisingly porters from news out- also limit the use of subpoenas to get to some media attor- lets. Most of those at a reporter’s telephone records. The AP PHOTO neys, the number of John Ashcroft subpoenas sought aired provisions concerning phone records subpoenas to news videotapes of interviews are rigorous: the department must organizations has not increased in with criminal defendants or print re- have grounds to believe a crime has any significant manner since Septem- porters’ testimony to verify the contents been committed, the information ber 11, according to Reporters Com- of published interviews. Other subpoe- sought must be essential, and the re- mittee sources. A year and a half after nas sought reporters’ notes. porter must be given timely notice of the attacks, anecdotal evidence The figures for the year 2002 have the Attorney General’s authorization showed that media organizations had yet to be released. Thus, any change in of the subpoena. not received a large number of terror- the number of federal subpoenas to news While the Attorney General’s ism-related subpoenas from the federal organizations since Sept. 11, 2001, has guidelines do not have the force of government since September 11. not been documented. law, experience has shown that they One reason for the lack of change Journalists facing subpoenas from are respected and followed by de- may be that news organizations were federal sources should be aware of inter- partment attorneys. In May 2002, for more willing after Sept. 11 to hand nal regulations within the Justice De- example, federal prosecutors in Man- over information to authorities with- partment known as the “Attorney hattan withdrew a subpoena to MSN- out being subpoenaed. Whether news General Guidelines on Subpoenaing the BC after they realized they had not media organizations are offering tape News Media.” The rules, designed to obtained authorization from the At- and other unpublished materials to balance the public’s interest in a free torney General. government is difficult to determine flow of information with the interest in Nevertheless, Attorney General because they apparently are doing so effective law enforcement, spell out pro- John Ashcroft has shown little com- only behind closed doors. cedures the department must follow mitment to enforcement of the sub- A report released by the Depart- when it subpoenas a member of the news poena guidelines. Journalists should ment of Justice in December 2001 media. take it upon themselves to insist that said the agency authorized 88 sub- Before a federal prosecutor may issue federal investigators and prosecutors poenas of the news media between a subpoena to a reporter, the Justice attempting to subpoena the news 1991 and Sept. 6, 2001. Of those Department regulations require that media follow the procedures laid out subpoenas, 17 sought information “[a]ll reasonable attempts should be made in the guidelines.

6 REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS One broadcaster re- ported receiving 53 sub- poenas, the most of any respondent in 2001. Two other broadcasters re- ceived more than 40 sub- poenas during the year. Thirty-five of the 65 broadcasters that received a subpoena in 2001 had more than five subpoenas during the year; 61 of the 65 received more than one subpoena. The print outlet that received the most subpoe- STILL IMAGES FROM VIDEO BY TURTLE MAJIK PRODUCTIONS nas received 15. All other A Missoula, Mont., trial judge in March 2001 dismissed a subpoena issued to a student newspapers that were sub- journalist who had videotaped disturbances between protestors and police, including poenaed in 2001 received assaults on news photographers, at a Hell’s Angels gathering in Missoula. no more than ten subpoe- nas over the course of the year. “massive” effort on the part of the sta- media outlet receiving the subpoena was Of the 319 respondents, 177 report- tion to respond to a subpoena issued in a party to the case, usually as the defen- ed receiving no subpoenas. the case. dant to a lawsuit, two of the suits in- News outlets from every state and the Surveyed news organizations report- volved a libel claim, two included an District of Columbia except Delaware, ed receiving 295 subpoenas (36 percent) invasion of privacy claim, and the rest Hawaii, Rhode Island and Wyoming related to civil litigation. The majority involved other types of civil claims. Be- responded to the survey. At least one of those civil subpoenas, 222 (75 per- cause claims involving libel and invasion subpoena was reported in 41 states and cent) were issued in civil trials, while 73 of privacy often are combined in one in the District of Columbia. (25 percent) sought depositions in civil legal proceeding, both claims can be matters. addressed in the same subpoena. Forums and Proceedings Responding news outlets indicated that only 10 (1 percent) of the subpoenas Who Subpoenaed the News organizations reported receiv- they received arose from proceedings News Media? ing subpoenas in connection with crim- within an administrative agency. Media inal trials and investigations, civil trials organizations reported another 13 (2 Criminal defendants served more sub- and civil depositions, criminal grand jury percent) where the type of proceeding poenas on the news media than anyone proceedings, and administrative pro- involved was unknown. Eleven subpoe- else, with a total of 223 reported (46 ceedings. nas were characterized by the respond- percent of criminal subpoenas and 27 Criminal proceedings generated the ing organization as being part of some percent of all subpoenas). Prosecutors greatest number of proceedings, sur- other type of proceeding, rather than a issued 206 subpoenas to the responding passing the number of subpoenas issued criminal, civil or administrative proceed- news media outlets (43 percent of crim- in civil cases by 189. Subpoenas issued in ing. inal subpoenas and 25 percent of all criminal cases accounted for 484 (56 The majority of subpoenas issued to subpoenas). percent) of the reported 823 subpoenas media outlets in 2001 arose in state court One broadcaster, in San Antonio, overall. Of those subpoenas, 353 (73 proceedings, accounting for 706 (86 per- Texas, had so many subpoenas from a percent) were served in conjunction with cent) of all reported subpoenas. Only 74 local prosecutor that it had to institute a a criminal trial, 115 (24 percent) were subpoenas reported (9 percent) were is- new policy. “We have begun charging served in conjunction with a criminal sued in proceedings in a federal court. the [District Attorney] for copies of tapes investigation, and 16 (3 percent) for The responding news organizations did of material that we actually broadcast in grand jury proceedings. not identify the source of the remaining our newscast,” said Greg Koelfgen of “Most subpoenas seek video and au- 43 (5 percent). KABB-TV. The station instituted the dio related to crime,” reported a Ken- In almost all of the civil cases, news fees “in hope it would slow the number tucky broadcaster, whose news outlet fit organizations said they were not parties [of] requests and to account for tapes/ the trend in this regard. to the lawsuits in question. Of the civil man hours required to make dubs,” he Because high-profile crimes are of- subpoenas reported, 286 (97 percent) wrote. ten covered more than once, some crim- were described as being served upon the Law enforcement officials issued 22 inal subpoenas can be especially media as “third parties” to the litigation. subpoenas (5 percent of criminal sub- burdensome. A media organization was directly in- poenas and 3 percent of all subpoenas) in “Some stories have run in our news- volved in the civil proceeding to which a 2001. Respondents did not identify a casts over 400 times,” said a broadcaster subpoena was connected in only nine source for 33 subpoenas (7 percent of in Sarasota, Fla. A murder in that city instances (3 percent). criminal subpoenas) served in conjunc- that went to trial in 2001 required a Out of the nine instances in which the tion with criminal proceedings.

AGENTS OF DISCOVERY 7 47 (25 percent). Newspapers reported receiving 37 subpoenas (20 percent) for Material sought by subpoenas: photograph negatives. Some respondents noted that photo- graphs of accident scenes seemed to prompt the most subpoenas. As a result, Newspapers some — like in Baton Rouge, La., and The Courier-Tribune in Testimony at a deposition 47 Asheboro, N.C. — have instituted poli- Testimony at trial 67 cies instructing employees not to save photos of accidents. Published stories 74 “We do not keep photos of wrecks or Internal memos 16 other assignments that are not actually published,” wrote Ray Criscoe of The 14 Written drafts Courier-Tribune. “And we have been in- Published photographs 47 structed by our corporate lawyer to de- stroy notes of stories rather than save 47 Unpublished photographs them.” Photo negatives 37 Newspapers were subpoenaed only 16 times (9 percent) for internal memo- 30 Audiotapes randa, 14 times (8 percent) for written Notes 70 drafts, and 30 times (16 percent) for audiotapes. Broadcasters For broadcasters, material actually aired accounted for the greatest number Testimony at a deposition 5 of subpoenas by a substantial margin - Testimony at trial 43 541 subpoenas (85 percent). Subpoenas that included demands for unedited au- 17 Internal memos dio or videotape were the second-most Written drafts 41 demanded materials from broadcasters, with those subpoenas totaling 172 (27 Outtakes 121 percent). Demands for outtakes were Material actually broadcast 541 slightly fewer than those for unedited audio or videotape at 121 (19 percent). Unedited audio/videotape 172 Again, film of accident scenes was of Notes 59 particular interest to litigants. John Emmert of WINK-TV in Fort Myers, Because subpoenas usually demand more than one type of information, total Fla., said the subpoenas to his station subpoenas by category will add up to more than the total number of subpoenas. sought “mostly car accidents.” One of the two subpoenas served to KDLT-TV in Sioux Falls, S.D., was from an auto- mobile crash victim who wanted video In civil cases, news organizations re- and newspapers were given ten. Because to help describe the scene of the acci- ported that plaintiffs issued 91 subpoe- subpoenas usually demand more than dent. nas (31 percent), while defendants issued one type of information, total subpoenas “It seems like the attorneys are get- 79 (27 percent). Responding media did by category will add up to more than the ting more aggressive about trying to get not identify a source for the remaining total number of subpoenas. raw video,” said one Idaho broadcaster. 125 (42 percent). Newspapers reported receiving their “We have attorneys that tell reporters Administrative agencies issued four largest number of subpoenas, 114 (61 while they are interviewing them that subpoenas (less than 1 percent). Private percent), for testimony. Subpoenas for they are going to subpoena the raw video individuals issued three subpoenas in testimony at trial totaled 67 (36 per- and save it.” administrative proceedings, with the cent), while subpoenas for testimony at Broadcasters reported being subpoe- source of one administrative subpoena depositions totaled 47 (25 percent). naed for notes in 59 instances (9 per- remaining unidentified. Published stories and reporters’ notes cent), written drafts in 41 instances (6 generated the next highest category of percent), and internal memos in 17 (3 Materials the Subpoenas Sought results at newspapers, with subpoenas percent). Broadcast subpoenas for testi- for published stories totaling 74 subpoe- mony at trial totaled 43 subpoenas (7 Newspaper and broadcast outlets were nas (40 percent) and subpoenas for notes percent), while those for testimony at asked to describe the type of material totaling 70 subpoenas (38 percent). depositions totaled five (1 percent). demanded by each subpoena they re- Subpoenas for unpublished photo- There were 11 subpoenas (1 percent) ceived in 1999. Broadcasters were given graphs numbered 47 (25 percent). Pub- reported for material related to news eight categories to classify subpoenas, lished photo subpoenas also numbered organizations’ Web site content. This is

8 REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS an increase from 1999, when subpoenas complying with the subpoena. ted a crime, or materials that must be for Web site materials represented less “We find the best way to get payment immediately seized to prevent death or than one half of one percent of all sub- is to include a letter describing the con- serious bodily injury. Although the act poenas. tents and make the bill a part of it. The applies to state law enforcement officers Respondents indicated that in six in- bill is then entered into the court record,” as well as federal authorities, eight states stances (1 percent), subpoenas demand- said Jim DePury, WPMT-TV’s news — California, Connecticut, Illinois, Ne- ed the identity of a confidential source director. braska, New Jersey, Oregon, Texas and or information obtained under a prom- Washington — have their own statutes ise of confidentiality. Of these subpoe- Newsroom Searches providing similar or even greater pro- nas, four (less than 1 percent) requested tection.6 confidential information, and two (less No newsroom searches were report- than 1 percent) requested the identity of ed by respondents in 2001. However, Sanctions confidential sources. Among the six sub- this does not mean that no newsroom poenas for confidential sources or infor- was searched that year. In 1999, no re- No respondent reported suffering mation, three were served on print outlets spondents reported being searched. In court sanctions for refusing to comply and three on broadcasters. 1997, five of the 597 respondents re- with a subpoena. Nevertheless, the year Many news outlets reported charg- ported that law enforcement officers 2001 saw the longest jailing of a journal- ing processing fees to parties who sub- searched their newsrooms during the ist in U.S. history. poenaed them for materials, such as year. In 1993, three of the 900 respond- In July 2001, unpublished author already-aired tape, that the news outlets ing news outlets reported having their Vanessa Leggett went to jail for refusing were willing to release. Fees ranged from newsroom searched. Two of the 1,010 to turn over information she had collect- $25 to $650 for a single subpoena. news organizations responding in 1991 ed while working on a book about the “It takes several hours to answer each reported having their newsroom 1997 murder of Houston socialite Doris subpoena — from archive search to dub- searched. No respondents reported be- Angleton. The subpoena came from a bing,” reported Paul Lewis of WTIC- ing searched in 1989. federal grand jury investigating the case TV in Hartford, Conn. “We bill whoever The federal Privacy Protection Act and sought all of Leggett’s tape-record- asks $250-$500 depending on [the] ex- generally prohibits federal and state ed interviews with her sources, includ- tent of the subpoena. We sometimes do employees from searching a newsroom. ing all copies of transcripts. Leggett get paid!” The act provides limited exceptions that argued that she was protected by a re- Another broadcaster, WPMT-TV in allow the government to search for cer- porter’s constitutional privilege against York, Pa., reported charging a base fee tain types of national security informa- divulging confidential sources. Two fed- of $100 per subpoena, plus $25 for each tion, child pornography, evidence that eral courts disagreed. U.S. District Judge extra hour, after the first two, spent the journalists themselves have commit- Melinda Harmon ruled on July 6, 2001,

Reporter’s privilege project aids journalists, attorneys

When faced with a subpoena, news the District of Columbia, and every fed- make a motion to quash. The guide organizations and their attorneys eral circuit. Each guide was written by a also covers contempt proceedings and should take ad- lawyer in that ju- the appeals process. vantage of The risdiction who The compendium also provides Reporters Com- has handled sub- helpful information on resisting news- mittee’s new poena cases. room searches by government au- comprehensive The compen- thorities and fighting subpoenas guide to the law dium is meant to issued to telephone companies in of the reporter’s guide attorneys search of journalists’ sources. privilege. The through the pro- The compendium is geared pri- Reporter’s Priv- cess of respond- marily towards lawyers, but journal- ilege Compen- ing to subpoenas ists will also benefit from the project’s dium, released on behalf of jour- comprehensive guide to reporter’s on the Web in nalists under the privilege laws. The Reporters Com- December 2002, laws of their ju- mittee advises journalists and news is the most exten- risdiction. In ad- organizations to consult an attorney sive work on the reporter’s privilege dition to giving a detailed analysis of when served with a subpoena or search available anywhere. each state’s privilege laws, the guides warrant. The compendium is a detailed provide practical information about sub- The compendium is on the Re- guide to the law of subpoenas and the poenas generally, including when and porters Committee Web site at reporter’s privilege in all 50 states, how a subpoena can be issued and how to www.rcfp.org/privilege.

AGENTS OF DISCOVERY 9 that no such privilege protects journal- Island was named as a possible witness subpoenas material to explain to him or ists in Texas. The U.S. Court of Appeals by the defense in a high-profile case he her what we have available and what we in Houston (5th Cir.) ruled that no re- was covering in the fall of 2001. The will comply with. Occasionally an attor- porter’s privilege exists against a grand case, State v. Cianci, involved alleged ney won’t talk to me,” said Roger Gad- jury subpoena. corruption at Providence City Hall. The ley of KMPH-TV in Fresno, Calif. Both the Reporters Committee for radio host reportedly had information Another California newspaper said: “Our Freedom of the Press and Rep. Sheila on how a government videotape of the attorney is very good at persuading sub- Jackson Lee (D-Texas) asked Attorney alleged corruption wound up in the hands poenaing attorneys to back off.” General John Ashcroft to intervene in of a . The trial judge At times, news organizations have Leggett’s case. Justice Department offi- issued a sequestration order preventing been successful at resisting subpoenas cials deferred to the court rulings and all possible witnesses from attending the before they are even served. said Leggett, a book author, could not criminal trial. According to a Rhode “There was one instance in mid-2001 benefit from federal guidelines that lim- Island attorney, an agreement with de- where attorneys threatened to seek a it the government’s authority to subpoe- fense counsel was reached whereby the subpoena for one of our reporter’s notes na journalists. talk show host was permitted to be in a case that was before a grand jury. Sticking to her journalistic princi- present for the testimony of witnesses Our attorney convinced them to drop ples, Leggett chose to go to jail for who were testifying about matters that the idea before it even entered the legal contempt rather than comply with the were not relevant to his potential testi- system,” reported Phil Haslanger of The court’s order to disclose her sources. In mony. Thus, he was able to attend most Capital Times in Madison, Wis. the end, she spent 168 days in jail and of the trial. “If we know a subpoena is going to be was released only when the term of the attempted, we alert the [photographer grand jury before whom she was sup- Responding to Subpoenas or] reporter who then refuses to go down- posed to testify expired. stairs to receive it,” explained a newspa- While Leggett’s experience was un- News organizations responded to per editor in . “An editor usual because of her lengthy jail stay, subpoenas with actions that ranged from goes instead and states that we refuse the reporters have been sanctioned in other full compliance to challenges before an subpoena. If necessary, our attorney cases for noncompliance with subpoe- appellate court. Survey respondents ful- makes a phone call to stop the subpoena. nas. In years past, respondents to this ly complied with 560 subpoenas (68 per- I have been here for 13 years and we have survey have reported on the jailing and cent) without objection. Only four never allowed a subpoena to be served.” fining of their reporters. For example, in subpoenas (less than 1 percent) were 1997, a California television news direc- challenged by the news media beyond Successful Challenges tor was sentenced to jail after refusing to the trial court level. An editor or attor- turn over outtakes from a jailhouse ney persuaded the party issuing a sub- Responding news organizations cit- interview with an accused killer. The poena to withdraw it in 156 instances (19 ed a variety of grounds for successful California Supreme Court ruled in percent of the time). challenges. At times, courts quashed sub- November 1999 that the shield law News organizations challenged sub- poenas for several different reasons. should have protected the journalist.7 poenas by filing motions to quash on 67 Shield laws were cited in 36 (54 per- In 1993, three of the responding news occasions (8 percent of the time). Courts cent of challenges), while provisions of outlets reported that a staff member was quashed 50 (75 percent) of those sub- federal or state constitutions were suc- sanctioned for refusing to comply with a poenas, and courts denied motions to cessfully invoked only 12 times (18 per- subpoena. In the 1991 survey, six orga- quash in 17 instances (25 percent). cent of challenges). That other sources nizations reported that employees had Of the denied motions, four (24 per- of the material were available often been sanctioned for not responding to cent) were appealed to higher courts, proved a fatal defect, being reported as subpoenas. In 1989, one news outlet and all were quashed on appeal. the grounds for quashing 21 times (31 reported that a staff member was subject Comments from respondents reveal percent of challenges). That the subpoe- to a sanction. that many news organizations, both print naing party did not have a sufficient and broadcast, achieved success in nego- need for the materials sought was cited Removing Reporters from the tiating the withdrawal or narrowing of for the reason for quashing 21 subpoe- Courtroom subpoena requests simply by contacting nas as well (31 percent of challenges). the attorneys who had demanded the Twelve subpoenas (18 percent of chal- Four news organizations out of the information. Such negotiations usually lenges) were quashed because the court 319 respondents (1 percent) reported consisted of informing those attorneys found the material requested to be ir- removing reporters from a story as a of the existence of state shield laws that relevant, and 22 subpoenas (33 percent result of the threat or use of subpoenas, protect journalists’ materials from com- of challenges) were quashed because the a decrease from the 5 percent of respon- pelled disclosure, making an offer to subpoena was found to be overbroad. dents who indicated they removed re- partially comply by providing previous- Two subpoenas were reportedly porters from stories in 1999. In all of the ly published materials only, or agreeing quashed on other grounds, such as a instances, the outlet removed the re- to verify that published materials were serving technicality or the fact that the porter at its own discretion, as opposed accurate. Negotiations were conducted organization did not have the subpoe- to compliance with a judge’s order. either by news editors or producers or by naed material. In a case not reported by respon- attorneys on their behalf. A respondent from Salt Lake City, dents, a radio talk show host in Rhode “I personally call each attorney who Utah, described a successful challenge at

10 REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS in prompting lawyer[s] to withdraw sub- poenas without a fight,” said a newspa- Responses to subpoenas per editor in Maryland, which has the nation’s oldest shield law, adopted in 1896. And a newspaper in New York wrote Broadcasters Filed motion to quash (14) that “the New York shield law discour- Withdrawn after ages most subpoenas for material from discussion (71) reporters.” Complied fully without opposing Print v. Broadcast: (520) Who Gets More Subpoenas? Newspapers Television stations received an aver- Filed motion to quash (53) Complied fully without age of 7.7 subpoenas, and newspapers opposing (40) received an average of 0.7. The dispro- portionate share of subpoenas served on Withdrawn after discussion (85) television stations correlates with previ- ous survey results. Of the 237 newspapers responding 77 (32 percent) received one or more subpoenas during 2001. Of the 82 broad- casters responding, 65 (79 percent) re- ceived one or more subpoenas during the year. Print and broadcast respondents re- his paper, The Deseret News. The sub- poenas per outlet, compared to 4.3 in ported similar experiences regarding the poena was served in connection with a non shield law states. type of proceedings involved and the case in which the Democratic party in Nevertheless, the responses from sources of those subpoenas. But subpoe- Massachusetts challenged the residency media organizations suggest that shield nas demanded different types of materi- of a candidate for governor who had a laws did make a difference in 2001 in al from different media, and the outlets home in Utah. The Democrats were whether a subpoena was quashed. The responded to subpoenas differently as citing Deseret News stories in an effort to quash rate for shield law states was 22 well. disqualify the candidate, and they sought percent, compared to 5 percent in non- Newspaper staff were more often to depose a reporter from the paper. shield law states. asked to testify at trial or at a deposition, Managing editor Rick Hall said: “We Several respondents in shield law receiving 114 subpoenas (61 percent) retained counsel, fought it in state dis- states expressed how their shield law for testimony. In contrast, 48 (8 percent) trict court. Ultimately, [the] judge re- benefitted them. of the subpoenas received by broadcast- quired [the] deposition, but limited the A newspaper in Nebraska reported: ers were for testimony at trial or deposi- scope. [The r]eporter was not forced to “In the one subpoena given to us this tion. give info not already published.” year, I contacted our legal counsel and Newspapers also reported more suc- the defending attorney who issued the cess in negotiating the withdrawal of How Effective are subpoena. I explained that Nebraska is a subpoenas. Newspapers indicated that Shield Laws? strong shield law state and that our re- 85 (46 percent) of the subpoenas issued porter would only cite the published against them were withdrawn, while tele- A surprising aspect of the survey re- article and not offer any other informa- vision stations negotiated withdrawal on sponses concerned whether the media tion. The attorney acknowledged that 71 occasions (11 percent). Likewise, print respondent in a state is covered by a and later withdrew as defending counsel media reported greater success in get- shield law. In 2001, 31 states and the on that case.” ting subpoenas quashed. Newspapers District of Columbia had shield laws. “I believe our state law governing quashed 40 subpoenas (22 percent), while News organizations in shield law states payment for materials and affording pro- broadcasters quashed only 10 (2 per- reported receiving an average of 3.1 sub- tection for both confidential and non- cent). poenas per outlet, while news organiza- confidential unpublished material is Print and broadcast media differed tions in non-shield law states reported tremendously helpful,” said Linda Light- greatly when it came to complying with an average of 1.7 subpoenas per outlet. foot, executive editor of The Advocate in subpoenas without opposing them. Tele- Other years have shown similarly Baton Rouge, La. She also said that on vision stations reported full compliance unexpected results. In 1999, shield law the rare occasion reporters for her paper in 520 situations (82 percent). Newspa- state outlets reported an average of 3.4 use confidential sources, “the source is pers, on the other hand, fully complied subpoenas, while non-shield law states fully briefed on our shield law provi- with only 40 (22 percent) of the subpoe- reported 2.3. In 1997, shield law state sions.” nas issued against them. Among subpoe- outlets received an average of 4.7 sub- “The shield law is immensely useful nas issued against broadcasters, 523 (82

AGENTS OF DISCOVERY 11 percent) demanded material already parties. The policy at KCRG-TV in with confidential sources in legally tricky aired, and among newspapers, 74 (40 Cedar Rapids, Iowa, is “not to keep situations.” percent) requested published articles. unedited raw videotape longer than 24 The two different types of media also hours,” according to news director The “Lazy Lawyer” Syndrome found success through different grounds Rebecca Lutgen Gardner. when challenging subpoenas. Newspa- At a station in Texas, “field tapes are As in past years, respondents indicat- pers cited state shield laws successfully kept in constant service so raw video is ed that subpoenas are taking time and in 30 instances (57 percent of challeng- often recorded over from day to day. resources away from their newsgather- es), but television stations asserted shield This way unedited video is non-exis- ing efforts, and most do not seem to be protections in six successful challenges tent.” serving any legitimate need for informa- (43 percent of challenges). Newspapers Some outlets tried to balance the de- tion. Many demand material that often relied on constitutional privileges in 11 sire to destroy materials for the purpose can be found elsewhere. successful challenges (21 percent of chal- of avoiding subpoenas against the need “In one case, because the attorney lenges); broadcasters cited a constitu- to retain information in the event a asked for material on an old crime, the tional challenge in one victory (7 story is questioned or becomes news [research and dubbing] bill was $650; percent). Subpoenas issued against news- again. much of the tape was stories in which file papers were deemed overbroad by a court “We save notes only long enough to tape was used, so he got the bit of silent in 14 cases (26 percent of challenges); make sure that those written about in video over and over again. Most attor- subpoenas to broadcasters were ruled critical (i.e. controversial) stories have a neys don’t know what they are asking overbroad in eight cases (57 percent of chance to claim corrections,” said an for,” wrote Roger Gadley of KMPH- challenges). editor in Vermont. “Most notebooks are TV in Fresno, Calif. tossed within weeks.” John M. Humenik in Davenport, Retention of Notes Similarly, a editor Iowa, said that at his newspaper, the And Use of Confidential said: “For many years it has been our Quad-City Times, “Each [subpoena] case Sources policy not to keep notes or drafts beyond involved defense attorneys unfamiliar a reasonable period of accountability for with press practices or on a fishing The 2001 survey form asked respon- a story’s accuracy.” expedition for a pre-trial venue mo- dents whether the threat of subpoenas or “We destroy all emails after 90 days,” tion.” the receipt of subpoenas had affected explained another southern respondent. “Mainly they’re time-consuming,” newsroom policies regarding the reten- “We keep notes only as necessary to lamented the news director at a station tion of notes or videotape, or the use of attribute information in the event of a in Iowa. “I had one that needed legal confidential sources. Out of 319 respon- libel suit.” counsel and took me away from my daily dents, 49 (15 percent) reported a change Not all news outlets have written duties. They’re a headache!” in newsroom policies as a result. Forty- policies or formal timetables. Many re- One tactic some broadcasters used four (14 percent) said their policies re- spondents simply described policies that for avoiding the hassle of a subpoena for garding the retention of notes, drafts or “encourage” or “recommend” the de- video already aired was referrals to a other unpublished or nonbroadcast ma- struction of unpublished materials, in- video monitoring service. Such compa- terial had been affected. Five (2 percent) cluding notes, unedited videotape, and nies, which do not exist in all markets, reported that changes had been made photographic negatives, within a “rea- keep archives of television programs they pertaining to the use of confidential sonable” amount of time. Some, like tape off the air and sell the tapes to sources due to the threat of subpoenas. Jonie Larson of The Daily Gazette in requesters. Some respondents described strict Sterling, Ill., said they decide what to A broadcaster in Indiana described institutional policies regarding the re- retain on a “case-by-case” basis. his station’s policy: “We do not offer tention of notes or videotape, and some “Our reporters and editors do not ‘raw’ tapes, only the aired versions are news organizations even promulgated retain drafts of stories unless there is a available. We have successfully chal- formal, written policies that reporters specific reason to do so,” said Frank lenged any and all requests for ‘raw’ and editors were expected to follow at all Barrows of The Charlotte Observer in footage. Because of that we have been times. North Carolina. referring attorneys to a video tape tran- For example, Rick Larson of the Tri- A number of news organizations said scribing company to get copies of stories City Herald in Washington said: “We they discourage reporters from using and transcripts of tapes. The company established a policy that notes should confidential sources due to concerns charges 10 times less than we do for such not be retained longer than 30 days about subpoenas, and many indicated a service. I would say that has cut our unless legal action is threatened.” that reporters are allowed to quote or workload, in regards to subpoenas, by “After attending a seminar discussing use unnamed sources only with prior nearly half.” the possibilities of subpoenas, we put a approval from editors. A station in Fresno, Calif., went so far 6-month time limit on keeping old notes, “Confidential sources are a continu- as to suggest to its local bar association then they are to be destroyed,” reported ing topic of conversation. Typically a that the bar contract with the local clip- Stan Hojnacki of The Hickory senior editor’s approval is required,” said ping service to permanently keep all in North Carolina. an editor in South Carolina. recordings, so that attorneys could go to Some broadcast outlets said they re- Another newspaper in Oregon has the service instead of to broadcasters for cycle tapes frequently, so that raw foot- instituted “increased training with re- their evidence. According to Roger Ga- age is not available for subpoenaing porters on potential limits and pitfalls dley, news director of KMPH-TV, the

12 REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS bar association was not interested, and Calculating the Cost the idea was dropped after one meeting. As noted earlier, even news outlets Consistency Undermining Independence that comply with demands for published or broadcast material or negotiate the is the best Underlying the news media’s resis- withdrawal of most subpoenas may end tance to subpoenas is a fear that provid- up spending significant amounts of time policy ing information in response to and money dealing with the subpoenas subpoenas, especially when those sub- they receive. Respondents’ estimates as Several survey respondents poenas come from government sources, to the average time spent on a typical voiced their view that resisting interferes with their ability to function subpoena ranged from 30 minutes to six subpoenas on a consistent basis as independent newsgatherers. hours; a majority said each subpoena is the best way to avoid them. “We train reporters/line editors to be takes between one and four hours. These respondents felt that ag- constantly vigilant to lawyers/subjects “It is a lengthy process to pull tapes gressive approaches to subpoe- of stories asking about stories which may and dub them,” explained one broad- nas will result not only in trigger subpoenas. We ask they report caster. subpoenas being quashed, but all such conversations,” said Frank Gib- At a Texas newspaper, “one criminal also will serve to deter future son of in Nashville. subpoena took dozens of hours from top subpoenas: “When a subpoena seems likely, we ask editors and lawyers.” lawyers to negotiate ways to avoid being Kay Lain of WGHP-TV in High “We had none this year, but used by prosecutors or litigants.” Point, S.C., explained that each request we’ve taken a firm stance: If you In its friend-of-the-court brief argu- involves “archive searches, locating tape, want it, subpoena ... and we’ll ing that book author Vanessa Leggett viewing tape and finding footage,” plus fight the subpoena, even for should be entitled to a legal privilege “paperwork to have [a] copy of [the] tape broadcast material. We just say allowing her to refrain from testifying made,” time for drafting a cover letter ‘no.’” before a grand jury in 2001, The Report- and official declaration for the court, — Al Aamodt of WDAY- ers Committee for Freedom of the Press conversations with the station’s legal TV in Fargo, N.D. wrote: “Absent this protection, the press department, as well as discussions with will be reduced to an investigative arm of the requesting party. All in all, the pro- “Our experience: If you fight prosecutors, police, criminal defendants, cess takes “several hours,” Lain said. subpoenas effectively and intel- and civil litigants, resulting in a severe And subpoenas pulled reporters and ligently, they arrive far less fre- chilling of the flow of information to the editors away from other duties. An Ida- quently.” public. It is this public need for informa- ho broadcaster estimated each subpoena — Thomas Kearney of The tion that should be at the center of this took up “a couple of hours between Keene Sentinal in Keene, N.H. debate, particularly with respect to con- talking with counsel, the General Man- fidential sources and information.”8 ager, the reporter, photographer, [and] “We have consistently re- The “investigative arm” analogy is looking at the tape.” sponded to subpoenas with a not new. In 1972, in the U.S. Supreme “The average subpoena fight involves pledge to file a motion to quash. Court’s watershed reporter’s privilege a few hours of legal conversation, which This has ended most problems case Branzburg v. Hayes, Justice Byron costs about $500 each time. At a small immediately, or soon after we White, in his concurrence, made sure to paper, that’s a big enough hit to hurt a sent over a copy of what [we] point out: “[w]e do not hold . . . that state bit,” wrote one newspaper in Florida. would file. Most attorneys leave and federal authorities are free to annex Of course, time and money spent on us alone these days.” the news media as an investigative arm a particular subpoena depends on the — Charles D. Mitchell of The of the government.”9 materials requested. “A non-problemat- Vicksburg Post in Vicksburg, Miss. The court hearing Leggett’s case took ic subpoena takes about 30 minutes or a narrow view of the privilege and said so,” said John Emmert of WINK-TV in “Our practice is to provide journalists have an obligation to help the Fort Myers, Fla. However, if the sub- copies of anything we air — we government prosecute crimes. Many in poena demands “numerous tapes and refuse to provide anything else. the news media disagree and, like most research, it can take up to several days.” Everyone seems to understand respondents to the 2001 survey, resist all Doug Merbach of KIMT-TV in this.” requests for unpublished or nonbroad- Mason City, Iowa, reported that an av- — Griff Potter of cast newsgathering information. erage subpoena at his outlet usually re- WQAD-TV in Moline, Ill. Some efforts to remain independent quires between one and two hours. In are successful, while others are not. An- one instance, however, he “received a “We have been aggressive in other newsgatherer in Texas recalled subpoena just two days before a hearing past years in resisting subpoenas, having spent considerable time “hag- on a case that had extensive coverage. and the local legal community is gling with [a] prosecutor” over a partic- Much of the next two days was spent well aware of that.” ular subpoena. “We opposed being used dubbing video and gathering scripts.” — News organization as part of their investigation,” reported Time and money spent negotiating in Illinois the publication’s editor, but ultimately a and complying with subpoenas is one motion to quash was defeated. thing; the costs increased significantly

AGENTS OF DISCOVERY 13 Footnotes States with shield laws 1 Brief of Amici Curiae The Reporters Committee for Freedom of the Press, American Society of Newspaper Editors, Radio-Television News Directors Associa- tion, and Society of Professional Journalists, RI Supporting Reversal of Contempt Order Against Vanessa Leggett, Case No. 01- DC 20745, http://www.rcfp.org/news/doc- uments/leggett.html, quoting Shoen v. Shoen, 5 F.3d 1289, 1294-95 (9th Cir. 1993). 2 In re Grand Jury Subpoenas, 29 Med. L. Rptr. 2301 (5th Cir. 2001) (unpub- lished opinion). 3 Gonzales v. National Broadcasting Shield law Co., Inc., 155 F.3d 618 (2d Cir. 1998). No shield law This opinion was later vacated; the court found a lesser privilege applied. Gonzales v. National Broadcasting Co., Inc., 186 when outlets had to pay attorneys to go employee hours and thousands of dol- F.3d 102 (2d Cir. 1999), amended by to court for them. lars. The burden is especially onerous 194 F.3d 29 (2d Cir. 1999). “Court appearances and briefing to when, as in most situations, the media 4 Branzburg v. Hayes, 408 U.S. 665, quash overly broad subpoenas generally organization is not a party to the lawsuit, 693-94 (1972). add an additional four to eight hours,” and the materials requested are available 5 Vincent Blasi, The Newsman’s Priv- said Gerald R. Ortbals of KSDK-TV in from other means. The media is too ilege: An Empirical Study, 70 Mich. L. St. Louis. often subjected to the “fishing expedi- Rev. 229 (1971). A more abbreviated “Lawyers are expensive, but worth it tions” of attorneys and investigators seek- follow-up study was conducted by Bos- when you need them,” said a broadcaster ing to bolster their cases with unnecessary ton attorney John E. Osborn in 1984. in South Carolina. Still, the fees can be data or footage. As one survey respon- John E. Osborn, The Reporter’s Confiden- “tough to swallow.” A representative dent wrote, the impact of subpoenas on tiality Privilege: Updating the Empirical from The Orlando Sentinal said the news- the news media is “immeasurable, but Evidence After a Decade of Subpoenas, 17 paper’s legal expenses are “significant”: considerable.” Colum. Hum. Rts. L. Rev. 57 (1985). A “roughly more than $30,000 for a sub- The Reporters Committee has docu- study of non-confidential information poena.” mented the burden of subpoenas in two was conducted in Florida before and The time and money that went to three-part studies, the second of which after a watershed Florida Supreme Court responding to subpoenas could have been terminates with this report. Over the case in the 1990s. Lawrence B. Alex- spent on reporting. An editor in Ohio course of the two studies — which ana- ander et al., Branzburg v. Hayes Revisited: summed up the problem: “It takes time lyzed data from six years out of a 13-year A Survey of Journalists Who Become Sub- away from newsgathering and supervi- period — the data has not shown any poena Targets, Newspaper Res. J., spring sion and it is an additional cost.” significant increase or decrease in the 1994, at 97. number or burden of subpoenas to the 6 Cal. Pen. Code § 1524(g); Conn. Conclusion news media. The data shows, at least Gen. Stat. § 54-33j; Ill. Stat. ch. 725 § 5/ anecdotally, that subpoenas pose a con- 108-3; Neb. Rev. Stat. § 29-813(2); N.J. Subpoenas to the news media are sistent problem in newsrooms around Stat. § 2A: 84A-21.9; Or. Stat. § burdensome in several respects. First, the country and that this burden is not 44.520(2); Tex. Code Crim. Proc., art. they threaten the neutrality and inde- going away. 18.01(e); Rev. Code Wash. § pendence of the media, casting them as This report attempts to quantify the 10.79.015(3). “agents of discovery” in lawsuits that harm that subpoenas cause to news or- 7 Miller v. Superior Court, 986 P.2d often do not involve them. Fighting sub- ganizations and the public’s right to 170 (Cal. 1999) poenas in order to maintain journalistic know. The Reporters Committee com- 8 Brief of Amici Curiae The Reporters independence drains significant resourc- piles this report in the hope that the Committee for Freedom of the Press, Amer- es that should be spent on collecting and statistics and anecdotes contained here- ican Society of Newspaper Editors, Radio- disseminating news. It also can result in in will be useful to attorneys, judges and Television News Directors Association, and court sanctions for journalists, such as legislators when they are called upon to Society of Professional Journalists, Support- Vanessa Leggett, who choose to guard make important decisions about the use ing Reversal of Contempt Order Against their sources in the face of a court of subpoenas against journalists. The Vanessa Leggett, Case No. 01-20745, order. freedom of the press to perform its es- http://www.rcfp.org/news/documents/ Even when news outlets comply, rath- sential function of informing the public leggett.html. er than resisting a subpoena, the cost to in an neutral and impartial manner is at 9 Branzburg, 408 U.S. at 709 (White, the organization can include countless stake. J. concurring).

14 REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS State-by-state comparison of subpoenas served

State Shield law? Survey responses Total subpoenas

1997 1999 2001 1997 1999 2001 1997 1999 2001 Alabama ✔✔✔ 7 7 5 30 30 21 Alaska ✔✔✔ 332000 ✔✔✔ 9 6 1 30 10 0 ✔✔✔ 8105 2193 California ✔✔✔49 31 13 322 233 41 Colorado ✔✔✔11 13 7 30 115 57 Connecticut 8 6 3 84 32 15 Delaware ✔✔✔ 100000 District of Columbia ✔✔✔ 31135715 Florida ✔✔29 17 13 234 68 79 ✔✔✔12 5 2 80 9 12 Hawaii 230450 Idaho 432076 Illinois ✔✔✔29 21 15 131 52 77 Indiana ✔✔✔16 21 12 62 51 31 Iowa 20 16 15 34 12 23 Kansas 11 7 9 13 1 1 Kentucky ✔✔✔ 946135113 Louisiana ✔✔✔12 11 5 81 61 39 Maine 521991 Maryland ✔✔✔ 7 5 5 20 14 19 Massachusetts 10 3 7 65 20 22 Michigan ✔✔✔13 15 13 40 48 32 Minnesota ✔✔✔12 10 5 41 10 9 Mississippi 11 6 6 26 12 29 Missouri 16 17 11 85 29 30 Montana ✔✔✔ 834411 Nebraska ✔✔✔ 7 5 9 14 16 53 Nevada ✔✔✔ 133028 New Hampshire 322110 New Jersey ✔✔✔ 7 4 3 29 24 5 New Mexico ✔✔✔ 6510113 New York ✔✔✔23 17 12 188 119 53 North Carolina * ✔ 15 19 11 51 52 7 North Dakota ✔✔✔ 545801 Ohio ✔✔✔23 11 8 96 5 4 Oklahoma ✔✔✔12 9 7 13 12 9 Oregon ✔✔✔ 7981458 Pennsylvania ✔✔✔30 17 14 188 11 20 Rhode Island ✔✔✔ 200000 South Carolina ✔✔✔ 7 7 8 19 23 12 South Dakota 6361156 ✔✔✔12 11 1 43 16 0 Texas 39 20 24 218 37 46 Utah 5 2 2 29 5 1 Vermont 10 33120 Virginia 10 9 3 45 36 2 Washington 15 8 8 47 9 0 West Virginia 8 6 3 37 48 2 Wisconsin 16 19 10 83 21 7 Wyoming 310300 TOTAL 30 31 32 597 440 319 2725 1326 823

* North Carolina’s shield law took effect in October 1999.

AGENTS OF DISCOVERY 15 Appendix A: The 2001 survey

16 REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS AGENTS OF DISCOVERY 17 18 REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS AGENTS OF DISCOVERY 19 Appendix B: Organizations participating in the survey

Alabama The Hartford Courant Palladium-Item (Richmond) Louisiana WTIC-TV (Hartford) Alexandria Daily Town Talk Times Daily (Florence) (Jasper) KNOE-TV (Monroe) WAFF-TV (Huntsville) District of Columbia The Advocate (Baton WHOA-TV (Montgomery) WJLA-TV (Washington) (Anderson) Rouge) WVTM-TV (Birmingham) The Reporter-Times The Daily Comet Florida (Martinsville) (Thibodaux) Alaska Cape Coral Daily Breeze The Washington Times- WWL-TV (New Orleans) KTUU-TV (Anchorage) Orlando Sentinel Herald The Daily Sitka Sentinel WISH-TV (Indianapolis) Maine Press Journal (Vero Beach) WKJG-TV (Fort Wayne) Morning Sentinel (Waterville) Arizona WSJV-TV (South Bend) Casa Grande Dispatch The St. Augustine Record Maryland (Saint Augustine) Iowa The Baltimore Sun Arkansas The Tampa Tribune Ad Express & The Capital (Annapolis) Arkansas Democrat-Gazette The Villages Daily Sun (Centerville) -Democrat (Easton) (Little Rock) WFOR-TV (Miami) Boone News-Republican WBOC-TV (Salisbury) Batesville Guard WINK-TV (Fort Myers) Creston News-Advertiser WHAG-TV (Hagerstown) WKMG-TV (Orlando) Daily Gate City (Keokuk) (Conway) WTVT-TV (Tampa) Daily Times Herald (Carroll) Massachusetts Northwest Arkansas Times WWSB-TV (Sarasota) KCRG-TV (Cedar Rapids) (Hyannis) (Fayetteville) KIMT-TV (Mason City) Daily Times Chronicle The Jonesboro Sun Georgia KTIV-TV (Sioux City) (Woburn) Columbus Ledger-Enquirer KYOU-TV (Ottumwa) North Adams Transcript California WSB-TV () Quad-City Times Sentinel & Enterprise Berkeley Daily Planet (Davenport) (Fitchburg) Daily Republic (Fairfield) Idaho (Quincy) KCOY-TV/KKFX-TV (Santa KTVB-TV (Boise) (Council The Salem Evening News Maria) The Moscow-Pullman Daily Bluffs) (Beverly) KMPH-TV (Fresno) News The Gazette (Cedar Rapids) WBZ-TV (Boston) KRCR-TV (Redding) The Newton Daily News Mountain Democrat Illinois The Tribune (Ames) Michigan (Placerville) Commercial News (Danville) Pasadena Star-News Daily Union (Shelbyville) Kansas Cadillac News Press-Telegram (Long Herald & Review (Decatur) Arkansas City Traveler Beach) Columbus Daily Advocate Detroit Newspapers San Jose Mercury News The Courier (Lincoln) Council Grove Republican Jackson Citizen Patriot The Californian (Salinas) The (Elgin) Iola Register Ludington Daily News The Record (Stockton) The Daily Chronicle (De Parsons Sun Vallejo Times-Herald Kalb) The Goodland Daily News Niles Visalia Times-Delta The Daily Gazette (Sterling) The The Herald-Palladium (St. The The Wichita Eagle Joseph) Colorado (Kankakee) Wellington Daily News The Monroe Evening News Daily Times-Call (Longmont) The State Journal-Register The Muskegon Chronicle Durango Herald (Springfield) Kentucky WLNS-TV (Lansing) Glenwood Springs Post Times-Republic (Watseka) Owensboro Messenger- WLUC-TV (Negaunee) Independent WEEK-TV (East Peoria) Inquirer Journal-Advocate (Sterling) WFLD-TV (Chicago) The Advocate-Messenger Minnesota KCNC-TV (Denver) WQAD-TV (Moline) (Danville) Albert Lea Tribune KRDO-TV (Colorado WTVO-TV (Rockford) Independent KARE-TV (Minneapolis) Springs) (Maysville) KSTP-TV (Minneapolis) The Denver Post Indiana The Winchester Sun The Daily Journal Chronicle-Tribune (Marion) WLKY-TV (Louisville) (International Falls) Connecticut Journal Gazette (Fort WPSD-TV (Paducah) WIRT-TV (Duluth) Wayne) (Bridgeport) La Porte Herald-Argus

20 REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS Mississippi New York KPIC-TV (Roseburg) KBTX-TV (Bryan) The Natchez Democrat KTVL-TV (Medford) KCEN-TV (Temple) The Vicksburg Post (Canandaigua) (Salem) KFDA-TV (Amarillo) WAPT-TV (Jackson) Newsday (Melville) The News-Review KJAC-TV (Port Arthur) WLBT-TV (Jackson) Press-Republican (Roseburg) KTSM-TV (El Paso) WLOX-TV (Biloxi) (Plattsburgh) (Portland) KWTX-TV (Waco) WXVT-TV (Greenville) (Batavia) The World (Coos Bay) Longview News-Journal (White Port Arthur News Missouri Plains) Pennsylvania San Angelo Standard-Times Columbia Daily Tribune The Oneida Daily Dispatch Bedford Gazette San Antonio Express-News & The Post-Standard/Syracuse Delaware County Daily Sulphur Springs News- News Herald-Journal/American Times (Primos) Telegram KOMU-TV (Columbia) The Post-Star (Glens Falls) KYW-TV (Philadelphia) Temple Daily Telegram KQTV-TV (Saint Joseph) WBNG-TV (Johnson City) Texas City Sun KRCG-TV (Jefferson City) WOKR-TV (Rochester) Observer-Reporter The Hereford Brand KSDK-TV (St Louis) WPTZ-TV (Plattsburgh) (Washington) The Orange Leader Moberly Monitor-Index & WXXA-TV (Albany) The Vernon Daily Record Democrat (Stroudsburg) News Tribune (Jefferson North Carolina The Bradford Era Utah City) The Daily Courier Deseret News (Salt Lake The Lebanon Daily Record The Asheville Citizen-Times (Connellsville) City) The Nevada Daily Mail/ The Charlotte Observer The (Saint Standard-Examiner (Ogden) Herald The Courier-Tribune Marys) The Sedalia Democrat (Asheboro) The Vermont The The Bennington Banner Montana The Observer-News- The Wayne Independent Brattleboro Reformer Enterprise (Newton) (Honesdale) WCAX-TV (Burlington) (Helena) Valley News Dispatch KECI-TV (Missoula) The Wilson Daily Times (Tarentum) Virginia (Missoula) WGHP-TV (High Point) WPMT-TV (York) Richmond Times-Dispatch The Havre Daily News Wilmington Star-News Inc The Daily News Leader Winston-Salem Journal South Carolina (Staunton) Nebraska Anderson Independent-Mail Virginian Review North Dakota Herald-Journal (Covington) KHAS-TV (Hastings) Dickinson Press (Spartanburg) KNOP-TV (North Platte) Forum (Fargo) The Index-Journal Washington KOLN-TV (Lincoln) Grand Forks Herald (Greenwood) Daily Record (Ellensburg) Lincoln The Jamestown Sun The Post and Courier KIMA-TV (Yakima) Nebraska City News-Press WDAY-TV (Fargo) (Charleston) Seattle Post-Intelligencer Omaha World-Herald The State (Columbia) The Chronicle (Centralia) The Grand Island Ohio Union Daily Times The Olympian Independent WHNS-TV (Greenville) The Wenatchee World The North Platte Telegraph Herald (Circleville) WYFF-TV (Greenville) Tri-City Herald (Tri-Cities) Morning Journal (Lisbon) Walla Walla Union-Bulletin Nevada Mount Vernon News South Dakota KRNV-TV (Reno) Springfield News-Sun Aberdeen American News West Virginia Nevada Appeal (Carson Telegraph-Forum (Bucyrus) (Sioux Falls) Charleston Daily Mail City) Times-Gazette (Hillsboro) KDLT-TV (Sioux Falls) Moundsville Daily Echo The Daily Sparks Tribune Vindicator (Youngstown) KNBN-TV (Rapid City) The Journal (Martinsburg) KOTA-TV (Rapid City) New Hampshire Oklahoma Wisconsin The Keene Sentinel Alva Review-Courier Antigo Daily Journal The Telegraph (Nashua) Durant Daily Democrat Tennessee Daily Tribune (Wisconsin KOKH-TV () The Tennessean (Nashville) Rapids) New Jersey Muskogee Daily Phoenix & Shawano Leader Courier News (Bridgewater) Times Democrat Texas (Madison) The Press of Atlantic City The Anadarko Daily News Amarillo Daily News The Daily Press (Ashland) (Pleasantville) The News Press (Stillwater) Big Spring Herald The Journal Times (Racine) The Star-Ledger (Newark) The Norman Transcript Corpus Christi Caller-Times Waukesha Freeman New Mexico Oregon WFRV-TV (Green Bay) KOBF-TV (Farmington) Argus Observer (Ontario) Herald and News (Klamath KABB-TV (San Antonio) (Madison) Falls) KACB-TV (San Angelo)

AGENTS OF DISCOVERY 21